0320110001
12-22-2010
Pemiton E. Gregory, Petitioner, v. John M. McHugh, Secretary, Department of the Army, Agency.
Pemiton E. Gregory,
Petitioner,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Petition No. 0320110001
MSPB No. DC0752090426I1
DECISION
Petitioner filed a timely petition with the Equal Employment Opportunity
Commission asking for review of a Final Order issued by the Merit
Systems Protection Board (MSPB) concerning his claim of discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
In an appeal to the MSPB, Petitioner alleged, among other things, that the
Agency discriminated against him on the basis of race (African-American)
when his pay was reduced and he was demoted from his position of
Supervisory Civil Engineer YF-02, to the position of Civil Engineer,
GS-12. Petitioner was also suspended for 21 days.
A hearing was held on the matter before an MSPB Administrative Judge
(AJ). Briefly, the AJ determined, based on the evidence presented at
the hearing, that Petitioner was charged with violating the Agency's
sexual harassment and hostile work environment policies. The AJ found
that these charges stemmed from allegations raised by two female
employees at a "sensing" session1 of sexually inappropriate comments
by Petitioner. Specifically, one woman alleged that Petitioner stuck
his tongue out and at her and stated that he had a working tongue. The
other woman said that Petitioner made comments to her such as: telling
her that she argued like his wife and that he wanted marital benefits
if she continued; telling her that she would look fine when she turned
40; pulling out money and waving it at her and telling her to turn on
the music and come and get it; and saying that he would have to violate
Virginia law and bring his gun into the office if her husband was going
to visit the office. The facilitator of the sensing session said that he
later spoke with Petitioner about the allegations. While he did not deny
making the comments, Petitioner stated he did not intend his comments as
sexual or offensive. He conceded that he should have been more careful.
Based on the evidence presented at the hearing, the AJ issued an initial
decision finding that the Agency did not sustain its charges. The
AJ found that while Petitioner engaged in inappropriate conduct and
admitted doing so, the Agency did not charge him with inappropriate
conduct, but rather with violating its sexual harassment and hostile work
environment policies. The AJ found that the Agency did not establish the
elements necessary to prove, by a preponderance of the evidence, that
Petitioner violated the specified policies. Among other things, the AJ
was unable to credit some of the testimony proffered by the females who
complained against Petitioner. The AJ noted that she could not sustain
an Agency action based on charges the Agency should have brought against
Petitioner (i.e. inappropriate conduct), but failed to do so. However,
although not sustaining the charges, the AJ found that Petitioner did
not establish that the disciplinary action was imposed as a result of
racial discrimination. Petitioner sought review by the full Board with
respect to his discrimination claims.
In its Opinion and Order, the full Board modified some of the analysis
of the decision of the AJ, but still reversed Petitioner's demotion and
suspension. The Board found that the AJ correctly applied Title VII sexual
harassment standards to both of the charges against Petitioner. The Board
noted that the Agency could have charged Petitioner with inappropriate
conduct if it did not want to meet the Title VII standard. The Board then
found that the Agency failed to prove both charges against Petitioner
under the Title VII sexual harassment standard. Finally, the Board
affirmed the finding of no discrimination, finding that although Agency
management could not ultimately prove all the elements of the charges
lodged against Petitioner, there was insufficient evidence to believe
that something other than the complaints about his conduct motivated
the disciplinary action. The Board found that Petitioner failed to
prove pretext, noting that Petitioner attempted to do so based solely
on his claim that a named comparator of a different race received more
favorable treatment. However, the Board concluded that Petitioner did
not show how he was similarly situated to the comparator he proffered
based on the differing conduct they were each alleged to have engaged
in. Accordingly, the Board determined Petitioner had not proven his race
discrimination claim.
Thereafter, Petitioner appealed the Board's decision on his discrimination
claim with the Commission.
ANALYSIS AND FINDINGS
EEOC regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes a
correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
The Commission concurs with the MSPB's conclusion that Petitioner has not
proven that the Agency's proffered reasons for its actions were a pretext
for discrimination. There is no evidence that the Agency acted for any
reason other than the fact that several female subordinate employees
complained about Petitioner's behavior. Moreover, Petitioner conceded
he made the comments ascribed to him, although asserts they were not
intended to be offensive. We note the AJ made specific findings that
the testimony of management witnesses explaining the decision to impose
disciplinary action was credible. We accord the AJ's credibility findings
a high degree of deference due to the AJ's first-hand knowledge, through
personal observation, of the demeanor and conduct of the witnesses. See
Walker v. Social Security Administration, EEOC Request No. 05980504
(April 8, 1999); Esquer v. U.S. Postal Service, EEOC Request No. 05960096
(September 6, 1996). In addition, we agree with the MSPB's finding that
the person to whom Petitioner compares himself had not engaged in similar
conduct and, therefore, was not a similarly situated comparator.
Based upon a thorough review of the record, it is the decision of
the Commission to CONCUR with the final decision of the MSPB finding
no discrimination. The Commission finds that the MSPB's decision
constitutes a correct interpretation of the laws, rules, regulations,
and policies governing this matter and is supported by the evidence in
the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of the date that you receive this decision.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official Agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 22, 2010
__________________
Date
1 Testimony indicates that "sensing" sessions were used by the Agency when
a particular organization was having difficulties. It allows employees,
without the presence of their supervisors, to discuss how they perceive
their work environment.
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0320110001
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320110001